The Presidential Pardon Power: What It Can Do and Its Limits

The short answer: The Constitution lets the President pardon federal crimes and shorten federal sentences. The power is broad, but it covers federal crimes only and can’t be used to stop an impeachment. It is separate from changes in the law and from sentence reductions ordered by a court.

The presidential pardon power comes from the Constitution. The president may reduce a prisoner’s sentence or pardon him for any federal crimes. Some presidents use this power to help rectify injustices from outdated mandatory minimum sentence laws. Clemency is separate from changes in the law and from sentence reductions ordered by a court.

The Problem Of Disproportionate Sentences

Many federal prisoners are serving very long or life sentences under firearm-enhancement mandatory minimums or “three-strike” laws. Even when Congress changes the mandatory minimums for these sentences, it may not apply retroactively. To do so, Congress must affirmatively state that the changes are retroactive.

As such, inmates are serving much longer sentences than what they would have received if sentenced for the same offenses today. They have little recourse except waiting for Congress to make a legislative change. However, presidential clemency power could expand to address these injustices instead of waiting for Congress.

An Overview Of Executive Clemency- What Is A Presidential Pardon?

Pardons and commutations are the two main forms of federal clemency. Reprieves and remission of fines are others (28 C.F.R. § 1.1). The president can personally decide which inmates to grant clemency. Now, the president may review applications on his own, or he can rely on the application and review process through the Department of Justice (DOJ).

Commutation Of Sentence

This form of clemency refers to a reduction in sentence. This is only available for federal crimes.

What Is A Presidential Pardon Power?

An executive pardon forgives the defendant for a federal crime. However, it does not erase or shield the record of the offense like an expungement (Office of the Pardon Attorney, Frequently Asked Questions). Rather, a presidential pardon excuses the defendant from any unserved part of the sentence and can remove many of the conviction’s consequences.

After receiving a presidential pardon, the recipient can regain rights lost because of the conviction, such as federal firearms rights, although the conviction stays on the record and some rights depend on state law.

Criminal Justice Reform Through Federal Legislation

One of the most popular examples of why legislative reforms are sometimes problematic is Matthew Charles. The court sentenced him to 35 years in prison for selling crack cocaine and illegal possession of a firearm. Over the years, Charles was a model inmate. For instance, he studied to become a law clerk and held Bible study classes for fellow inmates.

A federal judge granted his petition for early release in 2016. Charles enjoyed two years of freedom. However, federal prosecutors appealed the ruling. They argued he was a repeat offender and ineligible for early release. The appeals court agreed. Then, Charles had to turn himself back into prison.

After the appeal, criminal justice advocates pleaded for President Trump to use his presidential pardon power to pardon Charles. Meanwhile, Congress made a change to the mandatory minimum sentence laws for crack offenses. The First Step Act made that change retroactive, which covered Charles’s offense.

As a result, a federal judge granted his subsequent petition for early release. The government did not oppose his motion. Ultimately, the First Step Act helped him secure release, but he had to serve unnecessary prison time waiting for legislative change.

The Major Changes Of The First Step Act Of 2018

Unfortunately, it took years to pass the First Step Act. Criminal justice reform advocates fought fiercely to pass the amendments. As a whole, the amendments are helpful to defendants going forward. However, they do not necessarily go far enough for defendants serving time after sentence reduction recommendations were passed.

The Potential To Address Injustices Through Presidential Pardon Power

Most of all, executive clemency is more efficient than changing the laws. Instead of having to go through the time-consuming legislative process, the president can individually grant a pardon or commute a sentence. Along those lines, the president does not have to negotiate or bargain with other individuals or agencies to grant a clemency petition.

How The Trump Administration Has Used Clemency (Trump Pardons)

(This section was written in 2019, during President Trump’s first term.) President Trump actively granted clemency using his “Presidential Pardon Power.” In fact, he regularly comments about them on social media. Previously, past presidents were not as forthcoming about their positions on pending clemency petitions.

Furthermore, President Trump granted clemency petitions relatively early into his term. Typically, most presidents wait until they have served a full year in office before starting to grant clemency petitions.

At the time, advocates hoped this would mean more grants for people seeking a sentence reduction or presidential pardon, especially those serving harsh sentences with good prison records. No one can predict the outcome of any petition.

Insights On The Possibility Of Expanding Presidential Pardon Power

Fortunately, President Trump granted petitions early on so that more clemency petitions could be granted over his full term than in past administrations. Even so, critics argue that the DOJ’s role in reviewing and recommending applications is one-sided, because prosecutors are reluctant to recommend sentence reductions or pardons.

Although the president may receive and review applications through his own channels, this process is hard to manage on a large scale. One way to maximize the potential of presidential clemency power to address excessively harsh sentences is to formalize the process. For example, the president could appoint a bipartisan review board to handle clemency applications. Some states already use this method for processing clemency petitions.

As it stands, the current clemency application process is very secretive. The documents reviewed and the written DOJ recommendations are generally not available to the public or the petitioners. Increasing the transparency of the review process could encourage DOJ officials to fairly review petitions.

Your Options For Seeking Compassion After A Federal Criminal Conviction

Remember that only federal crimes qualify for executive clemency. You may need to ask a lawyer about your options for clemency or other sentence modifications if you are serving time for both federal and state crimes. The first step in seeking clemency is filing a petition that explains why you deserve a sentence reduction or presidential pardon.

It is rare for an inmate to attract enough media attention to circumvent the normal channels of seeking clemency. Occasionally, prisoners are able to raise the profile of their case enough to get the president’s attention.

The Process Of Filing A Federal Clemency Petition

The forms for a clemency petition are available online at justice.gov/pardon/apply-clemency. They require the defendant to provide personal information and details related to their criminal record. You must also confirm that you answered all the questions truthfully.

You do not need a lawyer to apply, and most applicants file without one (Office of the Pardon Attorney, Frequently Asked Questions). But failure to fill out the forms properly could hurt your application, so many people get help.

Presidential Pardon Power History

The presidential pardon history is based on the royal Prerogative of English Kings, centuries ago. The prerogative did not initially have limitations on it. Over time, English law came to bar a royal pardon from blocking an impeachment; Parliament wrote that rule into the Act of Settlement of 1701. A similar limit exists in the U.S. Constitution.

Due to the writings of Alexander Hamilton during the time the Constitution was being written in the United States, the pardon power was inserted into the U.S. Constitution. And, in fact, the first President, George Washington, was the first to use the pardon power, forgiving rebelling farmers after the Whiskey Rebellion. He issued his pardons in 1795.

Presidential Pardon Power Example

There are many examples of the use of the presidential pardon, from President George Washington’s use of it, noted above, to forgive the Whiskey Rebellion in 1795, to President Trump’s pardon of Arizona Sheriff Joe Arpaio in 2017.

However, probably the most famous example of the use of the pardon power was President Gerald Ford’s pardon of disgraced President Richard Nixon during the times of Watergate. In short, President Nixon was accused of attempting to cover up a break-in of the Democratic National Committee Headquarters at the Watergate Hotel in Washington DC.

Facing the prospect of impeachment, President Nixon resigned his office. Soon after, in order to move the country past the Watergate era, President Ford granted a full pardon to Nixon for any crimes committed in the Watergate affair. A controversial decision at the time, the pardon was later seen as the main reason that President Ford did not win reelection in 1976.

What is the Presidential Pardon Power in the Constitution & Constitutional Guidelines ?

The presidential pardon power can be found in Article II, Section 2 of the U.S. Constitution. The actual language of the clause reads as follows:

The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.

As you can see, the language of the provision is very simple, and efficiently outlines the presidential pardon authority. Like much of the Constitution, it does not provide any constitutional guidelines for the exercise of the pardon power beyond that one sentence. The U.S. Supreme Court has since had the role of interpreting the language to establish some guidelines on how the power can be exercised.

Presidential Pardon Power During Impeachment

As the pardon clause in the Constitution states, the President has seemingly absolute authority to grant pardons except in cases of impeachment. What that means is that if a President is impeached by the House of Representatives, the President cannot pardon himself of that impeachment.

Moreover, if the House impeaches any other government official, the President does not have the authority to pardon a person of the impeachment.

Are there any Limitations on a Presidential Pardon?

There are two express limits: the power covers only federal crimes, and it cannot be used in cases of impeachment. Otherwise, the President has broad authority to grant pardons before, during, or after a person is found to have committed a federal crime.

Contact Criminal Center About Your Clemency Petition

Criminal Center represents clients in federal criminal matters, including federal clemency petitions.

Request a consultation to explore your options.

Frequently Asked 1. Can the president pardon treason?

Yes. Treason is a federal crime. Therefore, a president can grant a pardon for treason. Some delegates to the Constitutional Convention proposed excluding treason from the pardon power, but that idea was rejected.

2. Who can a president pardon?

The president can pardon anyone for conduct related to a federal crime. There is currently a debate over whether a president can pardon himself. It remains an open question.

3. How many pardons can a US president give?

There is no limit on the number of pardons a president can grant. For example, President Jimmy Carter pardoned, as a group, people who evaded the draft during the Vietnam War.

Who has the authority to grant clemency?

For federal crimes, only the President of the United States can grant clemency.

5. Can the president pardon any crime?

No. The president only has the power to pardon people in connection with a federal crime. The president has no power to pardon people for state crimes.

6. How many times can a president pardon someone?

The Constitution sets no limit on how many times a president may grant clemency to the same person.

Additional resources :

Pardon Definition
Presidential Clemency
Executive Clemency
History Of Presidential Pardon
Clemency Letter